Akhilesh Kumar vs State Of U.P.& 5 Ors.
2014 Latest Caselaw 7118 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											    AFR	
 
							RESERVED
 
								      
 
Court No. - 13
 

 
Case :- WRIT - A No. - 27946 of 2013
 
Petitioner :- Akhilesh Kumar
 
Respondent :- State Of U.P.& 5 Ors.
 
Counsel for Petitioner :- Siddharth Khare,Ashok Khare
 
Counsel for Respondent :- C.S.C.,Q.H.Siddiqui
 

 
Hon'ble Vivek Kumar Birla,J.

Heard Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel appearing for the respondents.

Facts of the case are that late Manoj Kumar, the brother of the petitioner, was working as Junior Engineer (Civil) in Jal Nigam, who expired on 13.1.2010, while he was posted in Jal Nigam Corporation. It is alleged that after the death of the mother of the petitioner Smt. Prabhawati Devi, the father of the petitioner married again with one Radhika in the year 1998 and started living separately from late Manoj Kumar (brother of the petitioner), Akhilesh Kumar (petitioner) and his younger brother Amit Kumar. It para 18 and 19 of the petition it has been categorically stated that from his second wife the father of the petitioner Chhote Lal also has three daughters aged about 9 years, 13 years and 14 years and he is maintaining his second wife and three daughters only. Since the petitioner and his younger brother Amit Kumar were financial dependent on their brother late Manoj Kumar as such after his death an application dated 5.5.2011 was filed by the petitioner for seeking appointment on compassionate ground, a copy whereof is Annexure-1 to the petition. The papers were forwarded by the Executive Engineer, Division Office Pratapgarh to the Superintendent Engineer at Allahabad, which in turn, were further forwarded by the Superintendent Engineer to the Chief Engineer, Jal Nigam Lucknow. It is also on record that a communication dated 11.7.2011 was issued by the Chief Engineer Lucknow to the Executive Engineer Allahabad to consider the case of the petitioner as per the Dying In Harness Amendment Rules 2001, a copy whereof is Annexure-2 to the writ petition. Further correspondence amongst the respondent authorities has also been placed on record, which shows that the case of the petitioner was being considered for this purpose. The aforesaid correspondent are Annexures 5, 6, 7 and 8, which demonstrate that a finding of fact has come that petitioner and his younger brother Amit Kumar, were dependent on them deceased brother Manoj Kumar and were living with him. It was also recorded that the father of the petitioner is alive and is working in Akashvani.

On the basis of the aforesaid information, the application of the petitioner, seeking compassionate appointment, was rejected vide order dated 1.12.2011, a copy whereof is Annexure-9 to the petition. The petitioner filed a representation before the Managing Director, Jal Nigam, Lucknow, challenging the aforesaid communication. In the order dated 1.12.2011 two grounds for rejecting the claim of the petitioner were mentioned. First ground is that the petitioner is son of Chhote Lal and as such he is his family member and second ground is that since Chhote Lal is alive and is working in Akashvani, therefore, he would be treated as dependent of his father Chhote Lal and cannot be treated a dependent of his brother Manoj Kumar and it will also be deemed that the financial condition of the family of Chhote Lal is sound. It was further observed that in case the petitioner is not able to maintain himself, his father is liable to maintain him and for this purpose he may proceed against his father and that under these circumstances compassionate appointment cannot be granted to him. Thereafter the petitioner filed a petition being Writ Petition No. 3287 of 2013, highlighting the communication dated 1.12.2011 regarding the rejection of his claim and that the matter on his further representation is not being proceeded with by the competent authorities. In the aforesaid writ petition a direction was issued to the concerned authority to finalise the proceedings preferably within two months from the date of the production of the certified copy of the order before him, a copy of the judgement and order dated 21.1.2013 passed in Writ Petition No. 3287 of 2013 is Annexure-12 to the writ petition.

Subsequently, the representation of the petition was dismissed by the Executive Engineer, Allahabad, vide his order dated 27.4.2013, which is Annexure-13 to the petition. In this order apart from the grounds which were earlier mentioned in the order dated 1.12.2011 namely, that his father is alive and is working in Akashvani, an additional ground was added that his mother Smt. Prabhawati Devi lives in Allahabad along with her children whereas the mother of the late Monoj Kumar was one Smt. Radhika Devi and as such the petitioner being the step brother of Manoj Kumar cannot be treated his dependent and is not entitled for compassionate appointment.

In so far as the petitioner Akhilesh Kumar being stepbrother of Manoj Kumar is concerned, Sri Siddharth Khare submitted that his ground is neither here nor there and is contrary to the evidence on record. For this purpose he has drawn the attention of this court to Annexure-15 of the petition, which is a High School Examination 2006 Certificate of the petitioner Akhilesh Kumar where in his mother is shown to be Prabhawati Devi. He has thereafter placed the High School Examination Certificate 2001 of Manoj Kumar where again late Smt. Prabhawati Devi has been shown as his mother. A perusal thereof clearly shows that the mother of the petitioner Akhilesh Kumar as well as of late Manoj Kumar was same namely, Prabhawati Devi.

Assertion with regard to the aforesaid fact have been made in para 28 to 34 of the petition. In the counter affidavit in para 19 the said fact has not been denied by the respondents. It had also not been denied that no opportunity of hearing was accorded to the petition to prove his case that the mother of both, Akhilesh Kumar petition as well as late Manoj Kumar was one and same namely Smt. Prabhawati Devi. Therefore, in view of the aforesaid record available before this court, to which there is no specific denial, there appears to be no hesitation in holding that a new ground has been inserted while rejecting the claim of the petitioner which is contrary to the record available. This fact is further fortified from the inquiry report dated 30.9.2011, which is on record as Annexure-8 to the petition wherein a categorical finding of fact has come that the father of the petitioner had solemnized second marriage and is living separately. It was also recorded that deceased and his younger brother Amit Kumar were dependent of their brother late Manoj Kumar and was living separately with him. It is needless to note that had Smt. Prabhawati Devi, mother of the petitioner and first wife of Chhote Lal being alive, he could not have entered into second marriage on 3.4.1998 as it is proved from the marriage agreement dated 3.4.1998, which is Annexure-14 to the writ petition. For the purpose of the present case death of Smt. Prabhawati Devi is not very relevant once it is proved that the petitioner was dependent on late Manoj Kumar. Therefore, the controversy raised regarding the petitioner being stepbrother of late Manoj Kumar appears to be an afterthought and has no legs to stand as per the record available before this court.

Now coming to the second issue that as to whether the petitioner comes within the definition of family member of late Manoj Kumar within the meaning of the U.P. Recruitment of Dependents of Government Servant Dying in Harness Rule 1974 as amended from time to time herein after referred to as Dying in Harness Rules 1974. Thereafter the issue would be as to whether the petitioner is entitled for recruitment on compassionate ground as per Rule 5 of the Dying in Harness Rules 1974, in view of the fact that his father is alive and is in Government/Corporation service, For this purpose it is necessary to note the relevant un-amended and amended Dying in Harness Rules relating to the present controversy.

First of all definition of family is to be noted which has under gone various amendments. Definition as given in Rule 2 (c) of "family" as provided originally in Dying in Harness Rule 1974 is quoted below :-

(c) "family" shall include the following relations of the deceased Government servant:

(i) Wife or husband;

(ii) Sons;

(iii) Unmarried and widowed daughters;

Subsequently, an amendment was made in the definition and vide Notification dated 12.10.2001, following clause was added which is quoted here in under :-

(iv) If the deceased was unmarried Government servant, brother, unmarried sister and widowed mother dependant on the deceased Government servant.

Rule 5 which provides for a recruitment for a member of family of deceased originally quoted herein under :-

5. Recruitment of a member of the family of the deceased.

(1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person-

(i) fulfils the educational qualifications prescribed for the post.

(ii) is otherwise qualified for Government service, and

(iii) makes the application for employment within five years from the date of the death of the Government servant:

Provided that where the State government is satisfied that the time- limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner.

(2) As far as possible, such an employment should be given in the same department in which the deceased Government servant was employed prior to his death.

Subsequently vide Notification dated 12.10.2001 Sub Rule 3 and 4 were added to Rule 5 which are quoted herein under:-

3. Every appointment made under sub-rule (1) shall be subject to the condition that the person appointed under sub-rule (1) shall maintain other members of the family of deceased Government servant, who were dependent on the deceased Government servant immediately before his death and are unable to maintain themselves.

4. Where the person appointed under sub-rule (1) neglects or refuses to maintain a person to whom he is liable to maintain under sub-rule (3), his services may be terminated in accordance with the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, as amended from time to time.

The aforesaid amendments in the Dying in Harness Rules, 1974 would clearly indicate that consciously, on one hand, the inclusion of family members has been increased in the definition of "family" as given in Rule 2 (c) of the aforesaid Rules and on the other hand, in Rule 5 by adding sub-rule 3 and 4, a condition has been imposed on such family member, who is seeking appointment on compassionate ground that he would maintain other family members. Not only this, it has also been provided that in case he refuses to maintain other members, his services may be terminated. Thus, clearly the effort is not only to increase the number of family members, who may seek compassionate appointment but such entitlement would come with the liability to maintain other persons. As such the intention of the Legislature is to be seen in the light of the aforesaid amendments.

Now in view of the aforesaid provisions and the amendments consciously made therein the claim of the petitioner is to be tested.

In so far as the facts of the case regarding petitioner being a member of the family is concerned, the record clearly shows that the mother of the deceased and the petitioner Smt. Prabhawati Devi died in the year 1997 as nothing contrary exist on record. Thereafter the father of the petitioner Chhote Lal remarried on 3.4.1998 with one Radhika Devi and as per inquiry conducted by the respondent authorities he is undisputedly living separately with three daughters born out of the second marriage. A further finding of fact was clearly recorded in the inquiry conducted is that the petitioner along with his younger brother Amit Kumar was living separately along with the deceased Manoj Kumar and were completely financial dependent on him for his education and living etc. Therefore, in my opinion the "family" of late Manoj Kumar is to be seen for the purpose of Dying in Harness Rule, 1974 and not that of Sri Chhote Lal, father of the petitioner who got remarried as back as in the year 1998 and was living with Radhika Devi and three daughters born out of second marriage and was not maintaining the petitioner and his brothers including deceased Manoj Kumar. As such for all purposes under the provisions of Dying in Harness Rule 1974 his family became different family as contemplated in the aforesaid Rules 1974 and to hold otherwise would defeat the purpose of the said Rules.

Now coming to the question of petitioner falling in the family of late Manoj Kumar is concerned, newly added clause (iv) clearly provides that if the deceased was unmarried government servant brother dependent on the deceased employee deceased government servant would be included in the family, and therefore, can claim the compassionate appointment under Dying in Harness Rule 1974.

A reference may be made to a judgement of this court in Indrapal Singh Vs. State of U.P. and others 2014 (123) RD 504 (FB) wherein Full Bench of this court was considering the expression of "family" and 'house-hold' under the U.P. Scheduled Commodities Distribution Ordinance, 2004 and Clause 2 (0) and the Government Order dated 3.7.1990. For the purpose of arriving at right conclusion, in para 29 of the aforesaid judgement, it was observed that the definition has to be interpreted and understood in the context in which they have been used. For this purpose para 30, 31, 32 and 34 are quoted here in under :-

30. In Francis Bennion's Statutory Interpretation, purposive construction has been described as under :

"A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."

31. In 'The Interpretation and Application of Statutes' by Reed Dickerson, the author at p.135 has discussed the subject while dealing with the importance of context of the statute in the following terms:

"... The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience".'

32. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424] Apex Court stated as follows:

"..............If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act.............."

34. Apex Court in the case of Chairman, Indore Vikas Pradhikaran vs. M/s. Pure Industrial Cock & Chemicals Ltd AIR 2007 SC 2458 has mentioned that an act should be interpreted having regard to its history and the meaning given to a word cannot be read in a different way than what was interpreted in the earlier repealed section and the words have to be incorporated in the context in which they are used. Apex Court, once again in the case of State of Gujarat Vs. Justice R.A. Mehta, 2013 (1) scale 7, has once again reiterated the same principle, that every statute has, therefore, to be construed in the context of a scheme as a whole. Consideration of context, it is trite, is to be given the meaning to legislative intention according to the terms it has been expressed.

The aforesaid observation of the Full Bench leaves no room to doubt that in the present case that the family of late Manoj Kumar, who was undisputedly unmarried on the date of his death, has to be considered and on meaningful consideration the present petitioner Akhilesh Kumar clearly falls within the definition of family of late Manoj Kumar as per Rule 2 (c) (iv).

Now next question that as to whether in view of the fact that father of the petitioner was alive and was in Government/Corporation service, the petitioner could not have been granted compassionate appointment, is to be considered. For this purpose a reference may be made to certain observation of this court made in Full Bench decision in Sheo Kumar Dubey and others Vs. State of U.P. and others 2014 (2) (ADJ) 312 (FB). Para 3,6 and 29 are quoted here in under :-

3. Before we elucidate the principles which emerge from the body of precedent on the subject, it would, at the outset, be necessary to emphasise certain basic precepts and interpret the provisions of the Rules as they stand. Appointments to public offices have to comply with the requirements of Article 14 and Article 16 of the Constitution. Article 16 provides for equality of opportunity in matters of public employment. Compassionate appointment is in the nature of an exception to the ordinary norm of allowing equality of opportunity to every eligible person to compete for public employment. The reason for the exception as envisaged in the Rules is that the immediacy of the financial hardship that is sustained by a bereaved family by the death of its earning member is sought to be alleviated in a situation in which the government servant died while in service. Rule 5 of the Rules applies where a government servant has died in harness after the commencement of the Rules.

6. The Rules have been framed by the State Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution. The Rules make it abundantly clear that the purpose and object underlying the provision for compassionate appointment is not to reserve a post for a member of the family of a deceased government servant who has died while in service. The basic object and purpose is to provide a means to alleviate the financial distress of a family caused by the death of its member who was in government service. This is the underlying theme or thread which cuts across almost every provision of the Rules. Firstly, the spouse of the deceased government servant must not already be employed in the Central or State Governments or their Corporations. If the spouse is so employed, then obviously, there would be no warrant to grant compassionate appointment since the spouse would be expected to provide to the members of the family a nucleus for sustaining their livelihood. Secondly, the applicant himself should not be employed with the Central or State Governments or their Corporations. Thirdly, an application for appointment has to be made within five years from the date of death of the government servant. The rationale for imposing a limit of five years beyond which an application cannot be entertained is that the purpose of compassionate appointment is to bridge the immediacy of the loss of an earning member and the financial distress that is sustained in consequence. A lapse of time is regarded by the Rules as leading to a dilution of the immediacy of the requirement. The first proviso to Rule 5, however, confers upon the State Government a discretion to dispense with or relax the requirement of submitting an application in five years. This power is not unguided and is not left to the arbitrary discretion of the decision-making authority. Every discretionary power in public law has to be structured on objective principles. The first proviso requires the Government to be satisfied that the strict application of the norm of five years for submitting an application would cause undue hardship. The dispensation or relaxation is in order to deal with a case in a just and equitable manner. Under the second proviso, the burden has been cast on the applicant to furnish reasons and produce a justification together with evidence in the form of documents and proof in support of the cause for the delay in making an application within the stipulated period. Finally, on this aspect of interpretation, it must be emphasized that an applicant for employment under the Rules has to disclose in a full, true and candid manner, details of the financial condition of the family as well as all relevant details pertaining to the members of the family of the deceased including their names, age and status in regard to their marriage, employment and income. All these aspects have a bearing on the financial need of the family which has to be assessed before a decision is taken to grant compassionate appointment. The discretionary power to relax the time limit of five years is in the nature of an exception. It is a power which is vested in the State Government, a circumstance which is indicative of the fact that the subordinate legislation expects it to be exercised with scrupulous care. Ordinarily, the time limit of five years governs. The State Government may relax the norm on a careful evaluation of the circumstances mandated by the second proviso. It is but a matter of first principle that a discretionary power to relax the ordinary requirement should not swallow the main or substantive provision and render the basic purpose and object nugatory. The Rules indicate, in consequence, that an application for compassionate appointment, which is in relaxation of the normal recruitment Rules, must be made within a period of five years of the date of death of the government servant. But the State Government is conferred with a discretionary power to relax the requirement of five years in order to alleviate a situation of undue hardship so as to deal with a case in a just and equitable manner. The satisfaction of the State Government before it exercises the power of relaxation is not a subjective satisfaction but must be based on objective considerations founded on the disclosures made by the applicant for compassionate appointment. Those disclosures, in writing, must necessarily have a bearing on the reasons for the delay and on whether undue hardship within the meaning of the first proviso to Rule 5 of the Rules would be caused by the application of the time limit of five years. The expression 'undue hardship' has not been defined in the Rules. Undue hardship would necessarily postulate a consideration of relevant facts and circumstances including the income of the family, its financial condition and the extent of dependency.

29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:

(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;

(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;

(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;

(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;

(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;

(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;

(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;

(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family.

There is no doubt that immediacy of financial hardship is to be considered and the claim of the applicant is to be considered within the parameter of Rule 5 of Rule Dying in Harness Rule 1974 as amended from time to time.

In the present as already held that the petitioner has included in the family of late Manoj Kumar as defined under Rule 2 (c) (iv) of the Dying in Harness Rule 1974, as such the petitioner who is brother of the deceased and is not in service is entitled for appointment on compassionate ground provided he maintains other family members of the deceased namely his younger brother Amit Kumar, who is also living with him and was also dependent of late Manoj Kumar. Admittedly, deceased Manoj Kumar was unmarried as such the question of spouse being being in service does not arise. It is also undisputed fact that the petitioner Akhilesh Kumar is not in service of Central Govt. or State Govt. or in any Corporation as mentioned in Rule 5 of the Act.

As laid down in Full Bench decision in the case of Sheo Kumar Dubey (supra) para 29 (ii) (iii) (iv) suffice to say that once the father had left all the three brothers namely late Manoj Kumar, petitioner Akhilesh Kumar and younger brother Amit Kumar, the purpose and scheme of Dying in Harness Rule 1974 would be served by providing financial assistance to the petitioner by appointing him on compassionate ground who had filed his application well within time on 5.5.2011 whereas Manoj Kumar has expired on 13.1.2010 after completion of 18 years of his age. There is no evidence on record that the petitioner had any source of income to maintain himself and his younger brother Amit Kumar, who is now his dependent. Therefore, applying the golden Rule of interpretation which says that every statute has to be construed in the context of a scheme as a whole and is to be given the meaning of the legislative intention according to the terms it has been expressed. Therefore, in view of the above discussion the impugned order dated 27.4.2013 is not sustainable and is liable to be quashed.

Consequently, the order dated 27.4.2013 passed by Superintendent Engineer, U.P. Jal Nigam, Allahabad is hereby quashed. The respondent authorities are, accordingly, directed to consider the claim of the petitioner for appointment of on compassionate ground in Jal Nigam department and accordance with the educational qualifications and pass suitable order afresh, in the light of the above noted discussion, within a period of three months from the date of the production of the certified copy of this order.

The writ petition is, accordingly, allowed with the aforesaid observations.

Order Date :- 26.9.2014/SKS